Friending the FBI

You probably saw the stories that came out yesterday, reporting that law enforcement officers are, as this Yahoo! News story puts it, “following the rest of the Internet world into popular social-networking services, going undercover with false online profiles to communicate with suspects and gather private information”. Most of the stories imply that there’s something illegal about officers’ doing this . . . though they never specify exactly what makes it illegal.

I thought I’d do a post on the topic to analyze some of the potential arguments that could be made as to why this practice violates U.S. law (anyway). I’m going to limit the post to issues arising under the U.S. Constitution because it simply isn’t feasible for me to analyze the arguments that could be made under all of the state and federal statutes that might (or might not) apply here.

Let’s start with a threshold issue: The Yahoo! News story, like several other articles I skimmed, says that in “the face-to-face world, agents can’t impersonate a suspect’s spouse, child, parent or best friend” but they can certainly do this “online, behind the guise of a social networking site”. Does anyone find that surprising? I would hope not.

Online imposture has been going on since at least the 1990s. In 2006 I did a blog post in which I talked about online imposture and noted a fairly benign instance of it that occurred about 10 years earlier. I’ve also done other posts on how the law approaches and/or might approach a civilian’s posing as another civilian, which of course extracts the law enforcement component from the analysis.

Almost 2 years ago, I did a post on a case from Indiana in which a man used Facebook pages in the names of two sisters so he could pose as them online and have virtual sex with men (presumably) he met online. The issue in that case was whether what he did qualified as stalking (which I don’t think it did, and apparently neither did the defense attorney or the prosecutor).

But those cases all involved civilian imposture, i.e., one civilian impersonating another. The issue that arises in civilian imposture is whether or not the poseur committed a crime by pretending to be the other person. As I’ve noted before, a few states make imposture a crime, but most don’t seem to (unless it’s being done for the purposes of identity theft). It’s also possible to pursue that kind of imposture as criminal libel, but, as I’ve noted, that’s usually either not a crime or a very minor crime under state law.

But I digress: Let’s get back to law enforcement imposture. I’m going to assume that when officers pretend to be someone else on Facebook or some other social networking site they don’t try to defame that person or stalk anyone or otherwise engage in conduct that would constitute a crime under state or federal law. I don’t think that’s the issue that’s inciting indignation in the articles about law enforcement imposture.

I think that what’s inciting indignation is a feeling of betrayal . . . which derives from an implicit assumption that you should be able to trust people online . . . that is, trust them to be who they say they are. I don’t know about you, but I don’t buy that assumption. People misrepresent themselves in the real, physical world. Why, then, is there any reason to think they won’t do so – and do so more creatively and more successfully – online?

I’m actually getting to a Constitutional issue. In a post I did last August, I analyzed whether it would violate the 4^th Amendment for a law enforcement officer to go online and pretend to friend someone on Facebook or a similar social networking site . . . for the purposes of gathering evidence to be used against them. As I explained in that post, I think it’s clear that the officer could use the evidence he/she elicited because I don’t think this kind of scam would violate the 4^th Amendment.

In that post (and you might want to read it for more on all this) I explained that the U.S. Supreme Court has long approved the use of the “false friend” technique. In Hoffa v. U.S., 385 U.S. 293 (1966), the Court said that the 4^th Amendment doesn’t protect “a wrongdoer's misplaced belief that a person to whom he voluntarily confides his wrongdoing will not reveal it.” And in U.S. v. Connors, 441 F.3d 527 (U.S. Court of Appeals for the 7^th Circuit 2006), a federal appellate court observed, “[w]hen a friend is false, blame the friend, not the government.”

Now, those opinions were talking about strangers pretending to befriend someone who (foolishly) chooses to share incriminating information and/or evidence with them . . . but I see no reason why the result would change just because the officer pretends to be a real life friend of the suspect’s or even one of his/her relatives. Under 4^th Amendment law, you assume the risk of betrayal, i.e., you assume the risk of trusting someone. I think that principle, which evolved in the context of real-world communications, should apply with at least equal force online. After all, we all know things aren’t necessarily what they seem in the online context . . . so we should perhaps be even more suspicious there than we are here.

Some of the stories also talk about law enforcement imposters friending someone or otherwise gaining access to information they’ve posted on a Facebook page or other social networking site. In the post I did on the Hoffa issue, I also addressed that issue: If you post information (including incriminating information) online and give people access to it, you’ve surrendered any 4^th Amendment expectation of privacy you might otherwise have had in that information.

As I’ve noted in earlier posts, in Katz v. U.S., 389 U.S. 347 (1967), the U.S. Supreme Court held it is a 4^th Amendment “search” if law enforcement officers violate a “reasonable expectation of privacy” in a place or thing. Under Katz, a "reasonable expectation of privacy" exists when (i) I think something (a place, an activity) is private and (ii) society agrees that it is, in fact, private. The Katz Court noted, though, that whatever one "knowingly" exposes to public view, "even in his own home or office," is "not a subject of Fourth Amendment protection. If you post information (or images) online and give other people access to them, you’ve knowingly exposed them to public view (in the sense that you’ve lost control of them) and have thereby forfeited any 4^th Amendment protection that content might have had.

In that earlier post, I also explained that the social networking person who’s unknowingly shared incriminating information with a law enforcement officer who’s posing as a friend (maybe even a relative) doesn’t have a viable 5^th Amendment, privilege against self-incrimination argument, either. The privilege against self-incrimination only comes into play when (i) you are compelled (ii) to give testimony (iii) that incriminates you. For the purposes of this analysis, we’ll assume that what’s posted on the social networking site incriminates the person who posted it (i.e., implicates him in the commission of a crime). We’ll also assume that what was posted was “testimony” because some of it, anyway, consisted of messages and other communications.

The suspect’s problem, as far as taking the 5^th Amendment privilege is concerned, is that he wasn’t “compelled” to write and post the information online. The Supreme Court has held that if you voluntarily create documents (and whatever content is posted online is analogous to hardcopy documents), you cannot take the 5th Amendment as to the contents of those documents because you weren't compelled to create them. For the purposes of applying the 5th Amendment, if you voluntarily generate comment (oral testimony or writings like letters or emails), you've waived the 5th Amendment privilege as to that content.

Under the 5^th Amendment, “compulsion” requires a court have ordered you to give testimony, which means you have to testify or be held in contempt and be locked up until you do. No one made our hypothetical suspect post information online and then share it (unwittingly) with law enforcement officers, so the 5^th Amendment doesn’t work, either.

Finally, you might wonder about the applicability of the Miranda rules. As I noted in an earlier post, Miranda is a construct – a set of prophylactic rules the U.S. Supreme Court made up in order to restrict police officer’s ability to use psychological coercion to get people to confess in police interrogation rooms. For Miranda to apply, you have to be in police “custody” which, as noted in that post, means you have to (i) be under arrest or (i) have been restrained by the police in a manner similar to a formal arrest. Since our hypothetical suspect wasn’t in custody when he created the Facebook pages and posted incriminating information online AND gave the law enforcement imposters access to all of that, Miranda doesn’t apply.

One more comment: Some of the FBI-friending articles mention the Lori Drew case, in which she was prosecuted for “exceeding authorized access” to the MySpace system based on her having violated the Terms of Service by creating a fake MySpace account and pretending to be someone else. The judge in that case, of course, eventually held that the charge was not good because it violated Constitutional requirements that the law be clear and understandable (in other words, it was void for vagueness). Even if this was somehow illegal, that would be a matter of criminal liability, i.e., the issue would be whether the officers could be criminally prosecuted for exceeding authorized access to a computer system. As I’ve noted before, the Supreme Court basically says that criminal liability (which triggers the imposition of penal sanctions) is a different matter entirely from the 4^th Amendment analysis (a violation of which can trigger the exclusionary rule).